Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.... I would no more require a State to criminalize homosexual acts – or, for that matter, display any moral disapprobation of them – than I would forbid it to do so....

And by the way, Scalia has already committed to the proposition that Lawrence dictates the end of the exclusion of gay couples from legal marriage:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

The majority had claimed that Lawrence did not "involve” the issue of gay marriage, and Scalia said that could only make sense if you think "principle and logic have nothing to do with the decisions of this Court." (Of course, Scalia dissented in Lawrence and may decline to adhere to it, but it won't be because he thinks laws should enforce morality. It will be because he thinks courts should not strike down laws simply because there is no support for them other than morality.)

177 comments:

I've never understood the whole "laws shouldn't enforce morality" argument. It's entirely shallow - virtually all criminal laws are in place because we as a society have decided that the act in question is wrong - murder, stealing, abuse - all immoral acts. There is no argument against these acts that doesn't break down, ultimately, to "because it's wrong."

(I would be thoroughly against laws forbiding homosexual conduct. Just not on the superficial "laws can't enforce morality" argument.)

Isn't it the case that all laws enforce morality? Some (much) of that enforced morality is a lot less controversial than all this gay but e.g. "killing/stealing/raping is bad" is still a statement of morality, and laws against such are, quite specifically, there to enforce morality.

I think (and here I may be guilty, yet again, of reading too little and inferring too much) that Savage is going a bit too far on a point that, nonetheless, has merit. Abraham Lincoln waxed eloquent on the law's ability to promote good behavior, and on the erosion of the law when it fails to do so. Perhaps Savage was channeling that.

Most people don't read or try to understand court opinions. They tend to think that courts decide what's right, not what's legal. It's a problem, but that's the way it is.

"What's the legitimate state interest in preventing two same sex siblings from marrying?"

The prohibition of incest is supported by more than just morality, including concern about inbreeding. Same-sex couples won't breed, but that only means that the forbidden category is overinclusive, which isn't a problem when the court applies minimal scrutiny, as it did in Lawrence.

Please draw this in pictures so I can understand what you said. Otherwise I'd have to read it ten more times.

Something about morality and Scalia and Savage in LA getting it wrong. Dissenting and not adhering but for Reversoland reason and not the reason I'd think.

So even if I did penetrate that I'd still have my own question.

Why do laws favor straight married people to begin with? What advantage was seen in writing tax advantages to straight people married? What did they say about it when the laws were written? Forget about how they justify themselves now What was legal thinking then?

I'm guessing the idea is to coerce two alien species to cohabitate (a thought so unthinkable it's automatically underlined in red!) Give 'em a little edge there to help assure the improbable.

It's the only thing I can come up with.

And right now there are a lot of laws that discourage that so there goes that idea.

Conclusion: government involvement in personal marriage is irrational. Unless there is advantage either to taxing it, or taxing not doing it.

In actuality government's involvement in marriage, as I see it, is its marriage with you. It taxing everything you do and everything you do not do, that it can tax. That is its marriage to you.

It's a totally sexual-emotional thing. The saddest portrayal I could conjure in the moment, the sturdy camera tripod was right there so I used it, I draped my body over the tripod and used my arms to rifle its pretend pockets. I covered the tripod as much as I could and my friend stood there in amazement as I acted out raping my camera tripod. I kissed its neck and felt its breasts and explored its crotch with both hands then removed one and reached out behind me without looking while still kissing the tripod and fingered, "gimme gimme' and held out tmy hand backward behind me then clasped it and put the pretend contents into tripod's pretend pocket while feeling up tripod's crotch and kissing tripod's neck exchanging things behind tripod's and my own back while continuously feeling up tripod making love to her kissing her all over, whatdoyoucallit? ravishing tripod octopus style while continuously demanding exchanges around and behind tripod and performing exchanges in and out of tripod's pockets as if I had eight arms or sixteen arms or two thousand active arms ravishing tripod. It was pathetic and sinister as I could possibly dramatize at the moment, on the spot like that.

"Conclusion: government involvement in personal marriage is irrational. Unless there is advantage either to taxing it, or taxing not doing it."

The marriage penalty is known to hurt two income families, in which both the husband and the wife make the same. This hurts the lower incomes the most. Marriage tax law usually benefits in one spouse substantially makes more then the other.

Right now couples with lower incomes are actually discouraged to married. Single parents may qualify for reduce/free lunch, compared if the mother was married and shared on household with the father. The number of benefits from the state, may be greater staying as low-income single parents, compared to the benefit of marriage and combining resources.

I think gays want to enforce their acceptance on private institutions that would rather not.

Of course, once you eliminate the financial advantages from marriage, certain groups will care much less about the institution.

What we need is for more children to be born into a marriage and fewer to single mothers. This will solve a lot of problems as evidenced by the Freakonomics guys who showed that it is highly likely that abortion positively benefits the crime rate.

I would make the suggestion the two most tortuously misreported and widely misunderstood Supreme Court opinions in our lifetimes have been the majority opinion in Citizens United v. FEC and the Scalia dissent in Lawrence v. Texas.

I had to do with criminal law, whether a state has the right to prosecute someone for engaging in homosexual sex.

Unfettered anal sex used to be considered a societal harm, spreading disease even more easily than promiscuous vaginal sex. The appearance of AIDS materially affected society by diverting--for example--NIH resources and efforts from other societal ills.

But now that HIV is under control and soon to be preventable by vaccine, society can relax its vigilance.

Dan Savage thrives on hatred and moralizing. He needs Scalia (and the right) to be his hateful moralizing enemy. He needs it in order to prop up his own contraposed morality and hatred. Dan Savage wants the law to enforce moral standards. His moral standards, of course.

The constitution is grounded in morality. It's an expression of how a society can order itself to suppress totalitarian (then monarchical) tendencies, which lead directly to other moral wrongs. But now we are carving out constitutional exceptions for sexual morality (and its offspring the morality of termination of life of the unborn.) We are losing faith in the ability of the peoples' representatives to make judgments in that sphere.

Given how poorly they make judgments in other affairs under their governance, this is not a surprise.

The surprise to me is that the same people who do not trust government in this arena are willing to vastly expand its power in most other areas. They see no serious threat to liberty in the rest of government's grasp.

Amartel said... "Dan Savage thrives on hatred and moralizing. He needs Scalia (and the right) to be his hateful moralizing enemy. He needs it in order to prop up his own contraposed morality and hatred. Dan Savage wants the law to enforce moral standards. His moral standards, of course."

Dan Savage the "advice columnist" is indeed something of a one-man social freakshow.

But this Althouse post was in regard to DAVID Savage. Not the same guy.

Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

The state has a very strong interest in procreation. Because the law isn't perfectly defined for its purpose doesn't mean it ought to be changed to warp its purpose further. As in, why should elderly people be able to "marry" young people were no real romantic interest is possible, only to have the state pay survivor benefits? Doesn't that sound stupid? But it happens. Why open that door and encourage even more immoral behavior when there is no value to the state, and only cost to the taxpayer?

I don't understand this line of reasoning, except we need to be fair in the opportunities for parasitic behavior in everyone.

As in, what advantage to the STATE is there to promote homosexual marriages? I can think of exactly ZERO. And insofar as your incest arguments below, how about a father who has become sterile. Should he be able to marry his daughter, or his son to pass on the survivor benefits? What about his grandson or grand-daughter?

That is a preposterously inaccurate and misleading frame for the question(s) that will actually be presented and argued to the Court.

The Court will not "allow" or "disallow" gay marriage. That question is for the several states.

Whether there is a basis upon which the Constitution, through some means like the equal protection clause of the 14th Amendment requires the states to provide treatment of gay marriage equivalent to traditional marriage -- when there has been no other constitutional amendment on the subject and when the original amendment was adopted at a time when gay marriage was unthinkable -- is a better reflection of the real complexity of the question facing the Court. But it just doesn't work as well in Insta-polls.

Don't you think Scalia couching his dissent in the first person is a tactical mistake, in that it allows those who are more concerned with attacking Scalia than giving his actual words a careful reading, gives them an opening to personalize what he says?

People bring up taxes and health insurance, but as much as I'm a marriage defender, I feel deeply sympathetic when a gay partner can NOT sue for wrongful death, due to a lack of legal standing. Here it shows a real relationship, for heterosexual couples they did not marry for the government benefits, they didn't for something else out a real love for one another.

Marriage existed before government, just like friendships exist.

A much needed new legal status, that differs in public policy from marriage, is a must. IT is unfortunate, that we can not create a whole new legal status. I disagree with just calling something 'civil unions' without actually looking at the public policy needs of these relationships, and correctly create something that is just.

The issue is whether to normalize, tolerate, or reject behaviors constituting evolutionary dysfunction, which among others, includes homosexual behavior. This classification is routinely accomplished in practice, and is considered a normal duty of civilized society.

The issue is not restricted to homosexual behavior. In fact, it is more relevant to heterosexual dysfunction, especially when a woman commits premeditated murder of an innocent human life in her care, who literally has no voice, and no recourse to due process.

If members of the Supreme Court can rationalize depriving a citizen of due process, then they can certainly rationalize the normalization of other dysfunctional behaviors.

Anyway, homosexual behavior, like so many other dysfunctional behaviors, can be tolerated until they reach some critical mass in a population. Assuming there exists only measured and controlled external pressure, the criteria for evolutionary fitness can be reasonably satisfied when a population exhibits even minimal positive progress. In America, that criteria is not being satisfied; but, it is not principally due to minority acceptance of homosexual behavior. It is principally due to dysfunctional heterosexual behavior, which results in generational suicide, and a general devaluation of human life.

It sounds like we are in an abusive relationship. There is also no evidence that the government will reform itself or is even capable of rehabilitation. Its surrogates are oblivious to the punitive damage we are suffering. Perhaps its time for a divorce. They can have their dysfunctional behaviors, including premeditated murder, and we will begin our lives anew.

Can Althosue and Scalia show that the other side of this argument is saying that the courts should strike down laws simply because there is not support for them other than morality?

"In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

“'Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.' 478 U.S., at 216 (footnotes and citations omitted).

"Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here." --Lawrence v Texas (opinion)

"Well in the constitution it says part of the reason of the government was to 'promote general welfare', and morality is part of that."

No. "General welfare" is part of a particular clause in Article I, § 8 that reads: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

This isn't about government generally, but Congress, which has limited, enumerated power. The power enumerated there has to do with spending, not regulation.

Now, the states can regulate generally, but only for legitimate purposes. Lawrence is about whether morality and nothing more counts as legitimate. The majority, in an opinion by Justice Kennedy, said no.

Chickelit, adultery used to be considered a societal harm, too. Not only were there criminal penalties for it, some states limited the remarriage rights of adulterers. Straight people toiled for decades to overturn this.

Now that the rules of traditional marriage no longer apply to straight couples, why should they apply to same-sex couples?

"The issue is whether to normalize, tolerate, or reject behaviors constituting evolutionary dysfunction, which among others, includes homosexual behavior. This classification is routinely accomplished in practice, and is considered a normal duty of civilized society."

Straight people mutually masturbate, and oral and anal sex. These are normalized practices, and considered healthy alternatives to the conjugal act by many. We do not criminalize these behaviors, but we don't promote them as well.

No one talks about having oral/anal sex out of wedlock, the only thing public policy talks about is having babies out of wedlock.

Envy, or covetousness, if you prefer, is regarded as a moral wrong. And yet it's hard for me to imagine that a law prohibiting it -- and providing penalties for it -- could be considered justThankfully, there is no enforcement clause in the Tenth Comandment, but Moses may hit you over the head with them.

"Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

Also, the opinion claims that the Constitution was drafted so that later generations could invoke it in the pursuit of greater freedom.

I don't know if the Founders couldn't fathom how uncontainable liberty could become after they unleashed and cemented it in our founding documents. Did they intend to keep liberty and freedom as limited as it was during their time? I dunno.

BTW, does Scalia's POV mean that a jurisdiction can ban masturbation when it occurs in the privacy of a person's home?

Scalia should try devising a coherent system for his own understanding of ethics. Attaching a meaningless label like "morality" to a code does nothing to convince any rational person that it has any substance to it.

He is defending the idea of arbitrary laws, and he should just say so. Using a term that conveys gravitas is a dodge from the fact that he cares not if there's any substance to it.

Scalia's defense of all that is utterly schizophrenic. The tortured tone of his initial comments conveys that he is uncomfortable dismissing "morality" as the consideration for preserving a law, but later coming to terms with the fact that it is still no less an arbitrary one.

As in, what advantage to the STATE is there to promote homosexual marriages? I can think of exactly ZERO

One of the benefits to the State or society in promoting marriage in general, is the stability that marriage brings. When there are children in the mix, the stability of a marriage creates a better environment.

If stability of society is the goal, then perhaps the marriage of homosexuals would promote a more stable lifestyle that might benefit society as a whole.

Think. The difference between....Castro Street in SF with wild crazy, uninhibited sex, public nudity and perversion on display, with rampant disease transmission. Versus a couple of gay guys or lesbian women who just want to stay home with each other and watch reruns of old movies.

Think. The difference between....Castro Street in SF with wild crazy, uninhibited sex, public nudity and perversion on display, with rampant disease transmission. Versus a couple of gay guys or lesbian women who just want to stay home with each other and watch reruns of old movies.

Both have, and will always, exist. Just as similar archetypes of male-female pairings have, and will always, exist.

Both have, and will always, exist. Just as similar archetypes of male-female pairings have, and will always, exist.

True. But the benefit to the State or society is to encourage and reward some behaviours, like stable marriages [of any kind] and discourage other activities that are damaging not only to the people but to society in general.

I think it would be a benefit to encourage gay marriage......as long as the gays don't try to force the issue onto those who have religious objections. Like insisting that certain churches perform ceremonies.

They will insist on no such thing but of course as private institutions they don't enjoy some sort of special privilege of immunity against public pressure. Witness Romney's very own LDS church taking its sweet time to, nonetheless, eventually bow to public pressure (even implicitly) against preventing blacks from being ordained.

Envy, or covetousness, if you prefer, is regarded as a moral wrong. And yet it's hard for me to imagine that a law prohibiting it -- and providing penalties for it -- could be considered just.

There are procedural issues with outlawing envy. You only have mens rea (the mental state), without any actus reus (a physical crime). Thus it becomes incredibly dangerous to punish somebody based entirely on intangibles that we cannot see.

I have similar problems with "hate crimes." You're attempting to punish an emotion, hate, while claiming that this emotion makes the underlying crime worse. See, for instance, Wisconsin v. Mitchell.

Yet the underlying crime is absolutely the same. Now you're just punishing people for their motive.

Ultimately you're just punishing people for their speech. They belong to the wrong political party. They have a bad soul. To convict them, you have to rely almost entirely on what they said or wrote. I think there are serious free speech issues in such cases.

In the case of envy crimes, you have the double whammy, as there are serious due process issues as well. How would you go about punishing envy? "He was looking at the car, and there was a look in his eye. Envy, that's what it was. Envy."

It just seems really haphazard and arbitrary. Innocent people would be convicted, and guilty people would go free. I think a court could and should strike it down on the basis of due process.

He is defending the idea of arbitrary laws, and he should just say so.

Bah. If I deem a law bad or unjust, I violate it. Or not, depending on how bad the punishment might be.

Scalia is defending the idea of a republic, where people vote and we decide what our crimes are. And the unelected judiciary merely makes sure that the state is actually following our law.

You deem that arbitrary? It's democracy.

Calling people who disagree with you "irrational" is typical of anybody in a partisan fight. It's like calling people stupid. The judiciary should be above that sort of thing. It's not their business to determine if a law is stupid or not. We have not given them that control, Ritmo, and your urge to do so is a fascist one.

Then he should fucking say so. The word "morality" is a meaningless one. You conservatives love word economy. How about idea economy? If democracies are allowed to enact arbitrary laws then what is the purpose of injecting an arbitrary, non-democratic concept such as "morality" as a basis for it? None at all, other than to grasp at the gravitas offered by the puffy-sounding word without admitting that it is just as arbitrarily defined and meaningless in its derivation as "snuffleuppagus".

Is this really just a plea to save you from the burdens of using a mind?

He's not a dictator! It's not his job! Is the Constitution just toilet paper you use to wipe your ass why you dream of a utopia?

Refusing to offer coherent explanations for how he, an individual, with a subjective understanding of life, interprets anything - from the Constitution to methods of counting jellybeans in jars - just removes the court ever further from the sense of public legitimacy that John Roberts is thankfully trying to re-establish. Thank God for that.

No offense but I find all this extremely boring. The constitution is what 5 Ivy-league Lawyers say it is. Period. Their opinion doesn't have to be tethered to the Constitution or even make any sense. And every state law is unconstitutional -or constitutional- depending on how 5 of them feel about it at the moment.

So, stop pretending it has anything to with the ACTUAL Constitution that was written in the 18 Century or most of Amendments written in the 19th Century.

I have no idea why average Americans love the idea of 5 unelected Lawyers operating as a super-legislature - but they do.

The judiciary should be above that sort of thing. It's not their business to determine if a law is stupid or not. We have not given them that control, Ritmo, and your urge to do so is a fascist one.

You're right to a point. A stupid law may be harmless, or ignored, or lack ability to jeopardize the Republic under which the Constitution rests. But the more esoteric and schizophrenic the court gets in interpreting laws - or even its own system for interpreting laws - from something accessible to a clear-minded public, just further jeopardizes its own legitimacy as well.

It can defend arbitrary laws. But you and I part company on the magnitude of problems like harm and stupidity. Dred Scott was probably rightly decided, too. Maybe that's the only way history could have gone. But don't think that jurists can't do damage to the Republic and the constitution that guarantees it by their incompetence or incoherence. Scalia approaches that point more than I'm comfortable with.

" Versus a couple of gay guys or lesbian women who just want to stay home with each other and watch reruns of old movies."

We all sympathize for these couples, but who says a relationship between two people has to be sexual? Why do we care more about sexual pairings, compared to non-sexual pairings? What is the rational basis for that, if procreation is not a factor in these construction of these laws?

I'm not gay, but if I was not I could easily be living with a life long relationship with another woman and set up a household together.

Despite being married, the government doesn't check to see if my husband and I are having sex or sleeping in the same bed. The only time the government cares if we were married, was when I gave birth and when we claim children as dependents.

Murder is perfectly reproachable through any concise ethical framework. A human being (not a cell) has a right to maintain its life as it sees fit. This is a right that is so self-evident that the social approval offered by "morality" is completely unnecessary. As is any decent understanding of rights, and wrongs.

"Morality" is simply code for "society's and history's take on the wrongness or rightness of something". It is a code to signal in the mind of the listener the weight of social or historical approval or disapproval. It has nothing to do with whether reasoning people, with the advantage of evidence and arguments not in possession by earlier generations, could have thought. Therefore, it is not a reasoned way of determining right or wrong, but a way to unreason one's burden from having to meet that standard.

And that is why, over time, a thinking public usually comes around to rejecting notions of right or wrong based simply on the "moral" weight of social and historical pressure. Peer pressure, in case you hadn't noticed, is a similarly illegitimate way to determine right and wrong. But most adults are able to relinquish it by the time they mature past adolescence. Apparently not so with conservatives, though. They just replace the pressure of peers with the pressure of history and their own society.

Live and let live is a great attitude to have, but when viewed more darkly: human nature, the accrual of power, the righteous and fevered belief that people have in pursuing ideas (both religious and secular), as well as unintended consequences all persuade me that process can be just as important as substance.

There will be semi-nihilistic idiots like Ritmo running around, and really righteous gays who will not stop at simply getting a law passed. They will want civil society to accurately reflect their image, and they will follow their ideas to their logical consequences.

Like feminists, many won't care what they are breaking in the process.

But don't think that jurists can't do damage to the Republic and the constitution that guarantees it by their incompetence or incoherence.

Ritmo, I have been jumping up and down and calling the Supreme Court a bunch of baby-killers for like a decade now. You don't have to lecture me about how the unelected branch can damage our society.

Scalia's point is procedural. Follow our written law as best you can. That means following it even when you deem it irrational, bad or stupid. All the great jurists--Holmes, Black, Scalia--talk the same way.

Dred Scott was probably rightly decided, too.

No, it wasn't. Taney injected our Constitution with a racism that is nowhere in that document. You might say that's realist, but it's hardly lawful behavior.

Scalia approaches that point more than I'm comfortable with.

Ritmo, you don't like what a Republican Congress or President does, you can fight to change it. Why are you so uncomfortable with democracy, and so comfortable with 5 unelected people ruling our society?

I like this topic! I am one who generally thinks it is *immoral* to impose your *morality* on others. As a rule I find the impulse reprehensible. And yet, both extremes really seem to love the idea. Both extremes, the left and the right, seem to honestly believe it is not only their prerogative but a social good for them to legislate their *morality*.

I have been so surprised over the last few years to see how many far right folks think it is perfectly ok for them to vote on whether gays should have the same liberties they do. If marriage is a *right* which, as I understand it loving v Virginia established, then there really is no argument against gay marriage, imo. As Ted Olsen so aptly put it animus doesn’t cut it as a justification. It is neither here nor there whether you approve or disapprove of homosexuality, each individual has the same inalienable liberties.

In the forming of our country *the people* consciously gave up some freedoms in order to form a union. That’s the trade off in having a society. You have the *right* to free speech but you don’t have the *right* to put a bill board on your front lawn…and you have to cut your grass :-). Some things are more elegantly done by the collective (garbage collection, fire fighting etc) and others are better done by the individual or families or churches or other organizations. The inalienable rights, the human rights or freedoms, remain.

As Scalia notes, ideas of morality change. I think that consciousness evolves (at least for most people). It was considered fine to own slaves at our founding. Women were denied the vote until the 20th century. Now we have evolved. We will continue to, imo. Our understandings will grow. Our willingness to dominate and control others is seen more clearly for what it is, I believe. Freedom becomes more precious and valued. Our beliefs and our actions become more humane and loving.

Gay marriage is inevitable because gays have the same human rights as straights do. That is a higher *truth* than what the collective (the state) may think it *knows* at any given stage of history, imo.

Fuck off Shouting Titmouse and go back over to the Disney Channel while complaining about how blacks and Hispanics might take your job. You have nothing thoughtful to contribute to this or any serious thread and should crawl back into your cave-like retreat from the burdens of living in a city filled with the kind of people you think beneath you. Talk about the pot calling the kettle black! Sanctimonious? That's you living in the Woodstock that you so hate and can never stop preaching to! Fuck off you old goon and go defend the Dred Scott decision to someone who cares. What a waste of one's mind you exhibit - Dan Quayle must have had you in mind with that malapropist comment.

Shorter Shouting Titty Bar: Anything I don't understand is being said as an insult to my intelligence! (Or lack thereof).

What an entitled jackass. No one was addressing you. If you don't like conversations with words longer than two syllables long, then stay the hell out of them! Go do something useful with your life. Obsessing over your inferiority complex with me is just pathetic.

If I were your English teacher, Ritmo, and that's a job I did at one point in my life, I would flunk you for bullshit padding.

You are something of an expert in saying nothing at great length.

The purpose of writing is being understood. Your prose reads like the essay of a lazy college student trying to find a way to pad out a 20 page term paper assignment with a string of bullshit buzz words.

Murder is perfectly reproachable through any concise ethical framework.

Where do you learn ethics, Ritmo, at non-morality school?

This is a right that is so self-evident that the social approval offered by "morality" is completely unnecessary.

In nature, the strong eat the weak. Throughout history, slavery has existed and babies have been murdered. The idea that all human beings have equal moral worth is a fairly new idea in human history. And, as we have seen, dictators can dismiss this idea in the blink of an eye.

We have a 90% kill rate on the handcapped. You approve. And for pretty much the same reason Jefferson approved of slavery. Because you are so blinded by the society that you are in, that you cannot see the obvious wrong that is right in front of your eyes.

So please spare me this idea that morality is obvious across time and space. What's obvious to some people is cloudy and mysterious to others, and we can and do have brutal fights over what we think is right.

It's painfully obvious that you lack anything to say. Not just doubtful that you might. OBVIOUS! You have nothing to say at all! The sum total of Sloppy Turdburglar's prose amounts to others not being considerate of his opinions and possibly an imagined threat of taking his stuff. Because they're liberal or a minority. Not that he has all that much that anyone would want in the first place.

You are a pest. Go get a job teaching English if that's what you care about. Be a grammar Nazi someplace where it matters. Like an island where young natives are desperate for something beyond the cargo cult and still swoon over the idea of a past-his-prime American male visiting their native tribe. You can be like Robin Williams in Good Morning Vietnam. Minus the intelligence and humor.

What if consciousness is not evolving toward some goal in the future, but falling away from the truth?

That's how many religious folks I know think about this topic.

The culture is not going their way, generally.

The problems I have with this have to do as much with the illiberal impulses behind the waves of freedom and inclusion our society seems to be undergoing. The progressive left, the European Left, nihilism, moral relativism, scientism and the other secular moral absolutists out there who don't really live and let live. It's already deep into our politics b/c it's deep in our culture.

The liberal state will cease to be liberal if it uses its power to root out discrimination, religious and otherwise, on behalf of individuals and groups.

I'm accusing you, Ritmo, of provable acts of racism, not in my imagination, but demonstrable right on this blog.

You use blacks as a human shield. You pretend to speak for blacks. You pretend that every opinion of yours is of incredible importance to blacks. You pretend that disagreeing with you is akin to harming blacks.

You are a racist. You prove it almost every time you post on this blog.

Not only that, but this is the view of nature that conservatives continually want to reimpose in society. Where the strong aren't as strong as they think they should be, they advocate a way of reimposing it. They part ways with Hobbes not by saying that humans shouldn't be brutal with each other, but by saying that the government should assert that, instead of acting as a check against it.

Your fixation with cells is just the sort of unreasoning ignorance and distraction that the conservative defense of privilege requires.

As for this,

"So please spare me this idea that morality is obvious across time and space."

I said nothing of the sort. I said that reason and evidence makes ethics clearer at standpoints further in time than what came before.

And as a conservative, you'd be expected to dissent. But instead, you just ignored the point completely.

Ritmo has likely deeply identified with a set of ideas that compel him to think that he is on the side of black folks, at least in theory. He seems pretty anti-establishment as well, and kind of angry at something.

The problem I have with such ideas is that the people who hold them don't seem to mind their limits, and the danger they pose by the State having the ability to control all of the rest of our lives as well.

Chris, blacks voted overwhelmingly against the folks that I'm assuming you support. Unless you take them to be sheep, it is insulting to insinuate they have no political agency. (Although, it's insulting to pretend they're sheep, as well).

Anyway, does this also have anything to do with Scalia, morality and jurisprudence? I thought not, but assumed you were sufficiently brighter than Shouting Shit-for-Brains to realize that it doesn't get you anywhere to shy away from that discussion.

ST(D): Go have a discussion concerning your ideas (if you have any) on politics and history with some black folks, if you're so obsessed with who's being condescending to them.

How many comments have you made? All with the same point of distracting. It was funnier when Seven Machos kicked your ass. Just admit that you have a problem and slither back into the shadows that your dull mind inhabits.

No one mentioned slavery. We discussed jurisprudence and the legitimacy with which courts make their decisions. Dred Scott was important in this regard because it led to the civil destruction of the nation. THat's not controversial or race-obsessed, but it IS race-obsessed to fixate on it as some sort of unresolved matter of racial politics. This is not 1860 anymore, douchey guy. Get a grip. And go away.

No it's not. It's about evolving social trends. But evolution and trends elude you entirely, so I'm not surprised you missed the point.

The other participant to that sidebar didn't object as such? Why? Maybe she actually got the point and didn't get distracted with the boatload of baggage and grievances that consume you when it comes to anything involving race.

Just fuck off already. You are so irrelevant to anything worth discussing in this day and age it isn't funny. Very sad, as Machos would say.

It was considered fine to own slaves at our founding. Women were denied the vote until the 20th century. Now we have evolved.

Actually, homosexuality was quite common (and legal) in ancient Greece and Rome. So are we regressing 2000 years?

Infanticide was also quite common (and legal) in ancient Greece and Rome. Justice Blackmun cited the pagans for his viability doctrine. Are we going backwards?

Plato and Aristotle had particular disdain for the handicapped, who were to be murdered by the state, even against the will of their parents. Hitler had had the same idea.

We found equal rights for women that aren't in our Constitution, including a right to abort a pregnancy. And in order to find that right, we had to dehumanize the baby in the womb. A step forward? Progress? Or are we going backwards again?

Ritmo, you drag blacks into every conversation to prove that you cannot be challenged.

Let the record show that if the LDS instead dragged its heels on other social matters, or that if Dred Scott was about whether women could be considered property to a faction of the country willing to secede over the matter, then I would have argued that they were retrograde and wrong on that basis as well.

You are so stupid and irrelevant it isn't even funny. You are a very sad person. But you've managed to procreate. Go call your kids. Get a life. For the love of God.

After all, blacks were placed on this earth for the purpose of your use as an extortion tactic in arguments, weren't they?

No, but they were targeted by people willing to defend their privilege over them in the same way that others in this country defend their privilege over other groups today.

Does that bother you? Maybe it does, as it should. Maybe you should be a little more humble about that then, instead of deflecting. I have every right to discuss the rights and wrongs of my country's history. If you don't like it, then have your own discussion about how wonderful you and everything your country ever did are.

So Shouting: 3/5ths compromise. What's your take on that? It's in the founding document, after all. Promulgated.

But not worth discussing. Hear no evil and speak no evil, sayeth the immoral douchebag who thinketh that ignoring history is a great way to learn from it.

You are an irrelevant farce. You think your own feelings are more important than the 3/5ths compromise, Dred Scott or gay marriage, despite how significant, large and controversial those things either were or are. My, what an astounding douchebag you are!

You keep using blacks as a human shield. You continually insist that agreement with Ritmo is inimical to the welfare of blacks, and that disagreement with Ritmo is the same as yearning for a return to slavery and Jim Crow.

Obviously, your pathetic esteem needs this bullshit more than I do (or than anyone does). You said race was an important factor in appreciating the perpetuation of gun crime. And you have a long history going back before that. Even your fellow conservatives know how pathetic you are on all that.

"Peter Hoh said... Envy, or covetousness, if you prefer, is regarded as a moral wrong. And yet it's hard for me to imagine that a law prohibiting it -- and providing penalties for it -- could be considered just."

Are you kidding? Democrats don't consider envy a moral wrong- that's exactly why they wish to pass punitive tax rates on the successful people who make oodles of money. And they have even referred to higher tax rates as getting even. Get with times- envy is a moral good- it enables the state to drag everyone down to an equal playing field rather then trying to lift everyone up, a much harder proposition.

And I'm going to copy thi in this thread from another thread, because it fits in with this topic.

Hell, what's wrong with same sex marriage, just because it upends thousands of years of history? Nothing wrong with it, let's just go with the flow. After all, it's not like after this crusade gets it way that anyone will be talking about why bestiality is private sexual conduct that shouldn't be regulated by the state or anything. http://www.volokh.com/2012/12/05/zoophilia-sex-toys-and-the-consitutional-protection-of-autonomous-sex/ Nope, everything will stop with legalization of same sex marriage, no slppery slope there at all, nothing to see here. Just move along now, folks.

Straight people mutually masturbate, and oral and anal sex. These are normalized practices, and considered healthy alternatives to the conjugal act by many. We do not criminalize these behaviors, but we don't promote them as well.-- Renee

We do not promote them because they are not normal. The outcomes of these behaviors are not positive contributions to evolutionary fitness. However, as they are generally not disruptive of society or other people's lives, they are implicitly tolerated when engaged between consenting individuals in the privacy of their homes.

On the other hand, the colon is not designed to accommodate an intrusion as is the vagina. Its tissue is vulnerable to laceration, and designed for absorption, which increases the likelihood of transmitting antigens. This why HIV infections and AIDS primarily affects males engaged in homosexual behavior, and others engaged in promiscuous (i.e. risk is probabilistic and increases with increasing trials) behavior. The global cost of treating AIDS alone is tens of billions of dollars annually, which is a misallocation of wealth to compensate for the consequences of a minority voluntary behavior.

While the behaviors may be classified under moral standards, the outcomes they engender are of practical concern, not only for the individuals involved, but for society and humanity generally.

The prohibition of incest is supported by more than just morality, including concern about inbreeding. Same-sex couples won't breed, but that only means that the forbidden category is overinclusive, which isn't a problem when the court applies minimal scrutiny, as it did in Lawrence.

So allow the marriage between relatives that are incapable of reproducing. Brothers can marry each other, sisters can marry each other, post menopausal mothers can marry their sons and daughters, or grandkids, and fathers can marry their sons and grandsons.

The only problem with these things is it's a great way to abuse the system. But that's OK, the government has infinite money, and there are always suckers willing to work to pay for these immoral people.

So Shouting: 3/5ths compromise. What's your take on that? It's in the founding document, after all. Promulgated.

What? It's hard for me to believe that you don't know this, Ritmo, and aren't merely dissembling (since you affect being such an intellect) — but contrary to popular supposition, the so-called “3/5ths rule” in the Constitution was in no way included therein as some kind of societal judgment as to the degree of humanity of black African slaves.

Rather, the purpose of that clause was purely and simply to limit the influence of those states that already had millions of chattel slaves from counting those slaves one-for-one as if they were citizens and thereby obtaining an even stronger lock (to push slavery natch) on the House of Representatives.

The free states would have preferred that the slave states not count slaves at all in figuring their House representation, but this was the best compromise they could reach with the slaveholding states at the time, and without it who knows when the American slaves might have been freed.

Isn't it the case that all laws enforce morality? Some (much) of that enforced morality is a lot less controversial than all this gay but e.g. "killing/stealing/raping is bad" is still a statement of morality, and laws against such are, quite specifically, there to enforce morality.

No, all laws enforce the transition of money and wealth. Morals are irrelevant and superfluous.

Careful Michael. All that political history talk is liable to go right over terrorist sympathizer and erstwhile Black African warrior Kunta Kinte Thomas's head.

It's not a ping-pong match Palladian but a completely unwarranted and unwelcome and insanely protracted intrusion on the part of a sore loser, to derail a productive discussion that he couldn't have with personal grievances based on his self-exposure to all as an obvious and rather dimwitted douchebag.

It was pathetic. So pathetic in fact, that it took me that long to realize what his aim truly was. Redemption for the irredeemably revolting. Hence, the endlessness of it.

I am not familiar with George Gilder or "Men and Marriage". However, after a short review (from Wikipedia, which is notoriously biased), my initial impression is that I would not agree with him either in principle or in practice.

What, exactly, do your perceive that we share in common?

I recognize that there are two orders: natural and conscious, where the latter is subordinate or reconciles with the former. I identify two axioms: individual dignity and sanctity of human life. My intent is to describe an optimal system which preserves the principles while acknowledge the constraints imposed by the causal orders. I consider the natural order to be an objective order, while the conscious order is subjective and varies by individual. The natural order establishes evolutionary principles, and specifically evolutionary fitness, as both directive and inviolable -- our influence is strictly limited in time and space.

Apart from the biological imperatives, I consider women to be in principle the equal of men. I support their right to life, liberty, and the pursuit of happiness. I judge them as I do men by the content of their character and not by the "color of their skin".

Exactly. The "original compromise" was not racially oriented, other than incidentally in practice. It was a generic statement included to appease the minority but influential interests of slavers and the democratic leverage they desired to wield. It was made at a time when the United States could not reasonably afford to fight both a revolutionary and civil war.

An example of racially motivated discrimination, recorded in the black letter of law, can be found in the "progressive" South African constitution.

Another misconception is that the women's suffrage movement was to secure the right for women to vote. The Constitution was amended not for that purpose, but to establish universal suffrage for women. Women in America always had the right to vote, to an education, etc., but not uniformly throughout the states and localities.

> What advantage was seen in writing tax advantages to straight people married?

"Married people" don't have tax advantages. Some married folks pay significantly more taxes merely by "virtue" of being married. (Yes, some pay less, but your statement was general. I'm going to take a >$10k hit in 2012.)

> What did they say about it when the laws were written? Forget about how they justify themselves now What was legal thinking then?

They were thinking that married couples in community property states were gaming a progressive tax system. Thus, they introduced a married status to make them pay more money.

Under community property, an unmarried spouse could claim to have "earned" half the income, which would result in lower taxes for the couple.

The married status fixes that - they can pay more. (In the current schedules, married with income X always pays more than two singles with income X/2, albeit less than single with income X.)

Arithmetic matters. You can't have progressive marginal rates, a tax system that ignores the distribution of income in a married couple (aka community property) and no marriage differential for at least some couples.

Note - I didn't say "benefit". It can easily be a cost or, as in the current system, a cost for some and a benefit for others.

"Experts — purported experts — like Savage, insist on seeing something that Scalia directly tells us he is not saying."

Actually, no. Scalia does not directly tell us that he doesn't think homosexual sex should be banned by statute. He tells us he doesn't think the Constitution requires banning homosexual sex. It's a fair reading of Scalia's dissent that he, personally, supports the law. Particularly in light of Justice Thomas's separate dissent, which Scalia does not join, which states explicitly that he opposes the law. In any event, Scalia never says that he is not saying what Savage says he is saying.

In other words, free states wanted black people to count as even less than 3/5 of a person….

Very true — zero would be about right in terms of how much extra representation a slave state should get from its slaves. But so what? The slave states would have counted their slaves twice if they could have gotten away with it. Does this mean that they valued black slaves — as persons — infinitely more than the free states did their black residents? Not hardly. The relationship was inverse if anything.

Murder is perfectly reproachable through any concise ethical framework. A human being (not a cell) has a right to maintain its life as it sees fit. This is a right that is so self-evident that the social approval offered by "morality" is completely unnecessary. As is any decent understanding of rights, and wrongs.

So "a human being" (not "a cell," which I gather you are using as shorthand for anything from a fertilized egg to a fetus at full term) "has a right to maintain its life as it sees fit." Well, that's all right then. So a newborn "has a right to maintain its life as it sees fit." So does a one-year-old. So does a two-year-old. Any slight difficulties said "human beings" might find in finding food and shelter -- "as they see fit," of course -- we can gloss over.

Saint Croix is right: Infanticide (from "exposure" to direct killing) has a very long and by no means completed history. You may, perhaps, recall the IL bill that then-State Sen. Obama refused to vote for -- the one that would have required human infants born alive in the course of an attempted abortion the same sort of medical care that would be required for any premature infant. Nah, too burdensome.

Nurses' reports of such inconvenient human beings being tossed in janitor's closets until they were safely dead aren't really a problem for you, though, are they? Obviously the infant has every right to maintain its life as it sees fit. The small practical difficulties it may find in actually accomplishing this are mere quibbles.

Ignorance: well, Althouse says he says it and she's wrong. And he talks about the homophobic views of "some Americans" with a startling amount of passion and sympathy. If I were to note that some Americans think you're an asshole and a disgrace, you might be forgiven for taking offense.